Data

Date:
07-06-2013
Country:
Norway
Number:
LA-2012-186207
Court:
Agder Appeals Court
Parties:
Gulvplassen AS v. Homburg Houtimport B.V

Keywords

LACK OF CONFORMITY OF GOODS (ART. 35) - BURDEN OF PROOF ON THE PARTY ASSERTING NON-CONFORMITY

Abstract

[CLOUT Case no. 1635]

The case arose from a dispute between a Dutch seller and a Norwegian buyer about payment for wooden floors. The wooden floors delivered by the seller to the buyer cracked after installation. The buyer held that the cracks arose because the floors, upon delivery, contained a higher percentage of moisture than agreed. Based on this, the buyer claimed that the goods were not in conformity with the contract and thus refused to pay the full price and demanded damages.
Norway and the Netherlands are both parties to the CISG, and the contract in question was a contract for the sale of goods. Hence, absent a choice of the parties to the contrary, the contract was governed by the CISG. At this time, the CISG was incorporated into Norwegian law through the Norwegian Sale of Goods Act (SGA), which governed both domestic and international contracts for the sale of goods. Thus, although not explicitly mentioned by the court, which came to its conclusion without reference to either the CISG, the Norwegian SGA, case law or academic commentary, this issue was resolved on the basis of the Norwegian SGA Article 17 (consistent with Article 35 CISG).

The key issues in this case were (a) which party had the burden to prove whether the goods conformed to the contract, and (b) what was the evidentiary threshold to prove non-conformity. The Court stated that the party asserting that the goods are non-conforming bears the burden of proof; in this case, the buyer. With regard to whether the buyer had presented sufficient evidence that the wooden floors were non-conforming, the Court found that the buyer had not met the evidentiary threshold. The evidence presented proved that the wooden floors had cracked, but it did not establish what had caused the cracks. Thus, the buyer had not provided sufficient evidence to satisfy that the cracks in the floors arose due to non-conformity upon delivery from the seller.

Fulltext

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Source

Case Law on UNCITRAL Texts, A/CN.9/SER.C/ABSTRACTS/176}}